People v. Jackson

BAXTER, J.

I concur in the judgment affirming the guilt and penalty verdicts. I also agree with the bulk of the majority’s analysis. However, the majority decline to decide whether it was error to admit defendant’s Oregon escape as aggravating evidence at the penalty phase, simply concluding instead that if there was error, it was harmless.

I agree that admission of the Oregon escape had no prejudicial effect on the penalty outcome. However, I would reach the question avoided by the majority. I conclude that because the Oregon escape “involved ... the express or implied threat to use force or violence,” its admission was proper under factor (b) of Penal Code section 190.3. 3

By its nature, escape from secure confinement demonstrates a desperate readiness to resist lawful custody and raises a high likelihood of confrontation with guards, witnesses, pursuing police, or innocent citizens. It thus presents a substantial “threat” of violence, even when no violence was specifically planned and no person was actually hurt.

Moreover, the specific facts of defendant’s Oregon escape amply demonstrate its inherent potential for violent or threatening encounters. At the time he broke out of the Oregon jail, defendant was already a capital fugitive, violent escapee, and multiple felon who faced serious consequences in two states unless he took extreme measures to regain his freedom. By great exertion and determination, he escaped under circumstances which almost guaranteed that he would be stopped or promptly pursued. In fact, his breakout did engender an immediate manhunt which ended in his recapture by officers brandishing firearms.

From these facts, a jury could readily infer that defendant was willing to make good his escape at any cost, would resist if the necessity and opportunity arose, and in any event had created a situation where the inherent *1259 potential for violent confrontation was high. The escape, a criminal offense, thus presented an “express or implied threat [of] force or violence.” Nothing in the death penalty statute, our cases, or common sense precluded the sentencer from drawing that conclusion simply because, by luck, defendant did not actually menace or harm any person.

That section 190.3 intends the broadest possible aggravating use of criminal conduct involving actual or potential violence is clear from the statute’s wording. Factor (b) of section 190.3 (factor (b)) provides that the aggravating evidence may include any “criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” Use of the words “involved” and “express or implied threat” indicates that all criminal conduct in which the specific likelihood of violence arose is relevant.

Thus, the statute does not simply encompass those offenses that are defined in violent terms, but includes all “crimes that were perpetrated in a violent or threatening manner.” (People v. Grant (1988) 45 Cal.3d 829, 851 [ 248 Cal.Rptr. 444 , 755 P.2d 894 ].) And nonviolent, aspects of a course of criminal conduct may be shown in order to demonstrate the “context” in which violent or threatening conduct took place. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1013-1014 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ]; People v. Melton (1988) 44 Cal.3d 713, 757 [ 244 Cal.Rptr. 867 , 750 P.2d 741 ]; see also People v. Cooper (1991) 53 Cal.3d 771, 840-841 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ].)

Defendant urges that his only “violence” in the Oregon escape was his destruction of his cell bench and the jailhouse window. He stresses the absence of evidence that he was armed, or that any innocent person was immediately present against whom “violent” conduct could have been directed. He notes we held in People v. Boyd (1985) 38 Cal.3d 762 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ] that an escape is not “violent” within the meaning of factor (b) simply because it involves damage or destruction to property in an area not then occupied by potential human victims. (38 Cal.3d at pp. 776-777.)

However, Boyd was argued and decided exclusively on the narrow question whether property damage alone is sufficient to constitute “force or violence” under factor (b). Boyd does not stand for any broader principle that criminal conduct, including an escape, must be considered nonviolent unless a human being was actually assaulted or menaced. As later cases make clear, the law is otherwise.

In People v. Stanley (1995) 10 Cal.4th 764 [ 42 Cal.Rptr.2d 543 , 897 P.2d 481 ], for example, we held that destruction of property may be considered *1260 “violent” criminal conduct where it implies a threat to another’s personal safety. (Id. at pp. 823-824 [husband’s “torching” of wife’s car as intimidating prelude to her murder three weeks later].) And we have consistently ruled that “a defendant’s knowing possession of a potentially dangerous weapon in custody is admissible under factor (b). Such conduct is unlawful and involves an implied threat of violence even where there is no evidence defendant used or displayed it in a provocative or threatening manner. [Citations.]” (People v. Tuilaepa (1992) 4 Cal.4th 569, 589 [ 15 Cal.Rptr.2d 382 , 842 P.2d 1142 ], italics added; see also, e.g., People v. Ramirez (1990) 50 Cal.3d 1158, 1186-1187 [ 270 Cal.Rptr. 286 , 791 P.2d 965 ]; People v. Harris (1981) 28 Cal.3d 935, 962-963 [ 171 Cal.Rptr. 679 , 623 P.2d 240 ].)

Moreover, since Boyd was decided, we have demonstrated our understanding that the peculiar dangers posed by an escape attempt may make it an “express or implied threat [of] force or violence” against persons, and thus admissible under factor (b), even when, by good fortune, no person actually came in harm’s way. Thus, in People v. Boyde (1988) 46 Cal.3d 212 [ 250 Cal.Rptr. 83 , 758 P.2d 25 ], the defendant solicited another inmate, Moore, to help him escape from the jail roof. Under the plan, Moore was to leave a gun on the roof for the defendant’s use in subduing the guard if necessary. (Id. at p. 248.) We concluded that the jury could find a completed criminal conspiracy, and because the escape plan contemplated possible violence, it met the “force or violence” test of factor (b). (46 Cal.3d at pp. 249-250.)

Similarly, in People v. Gallego (1990) 52 Cal.3d 115 [ 276 Cal.Rptr. 679 , 802 P.2d 169 ], jail guards thwarted an escape conspiracy evidenced by the defendant’s note to another inmate in which a jail-made “shank” was mentioned. (Id. at p. 155.) We refused to accept the contention that there was insufficient evidence of any crime to allow consideration of the escape plan under factor (b). ( 52 Cal.3d at p. 196 .) This determination assumed the rule of Boyde , i.e., that the defendant’s mere mention of weapon use in connection with the plan was enough to allow its consideration as “violent” conduct.

In People v. Mason (1991) 52 Cal.3d 909 [ 277 Cal.Rptr. 166 , 802 P.2d 950 ], we squarely held that an escape attempt in which no force was actually used is admissible if, on its facts, it presented a “threat” of violence. While in jail awaiting his capital penalty retrial, defendant Mason twice cut through the screen on his cell window. Each time, the cut was discovered before Mason could make good his escape. The prosecution showed that Mason’s intended escape route, as well as any feasible alternative plan, would “almost certainly” have involved a confrontation with a guard. Under these circumstances, despite the lack of evidence that Mason was armed or *1261 specifically intended violent resistance, we found there were sufficient indicia of potential violence to allow consideration of the attempted escape under factor (b). (52 Cal.3d at pp. 954-956.)

Mason did not hold, of course, that an escape “threat[ens]” violence, within the meaning of factor (b), only where the prosecution first demonstrates a specific likelihood that confrontation was probable in the particular case. Nor should such a rule be adopted. On the contrary, most, if not all, escapes from guarded confinement present indicia of potential violence similar to those we acknowledged in Mason . The “threat” or likelihood of violent confrontation is inherent in the breakout itself. 2

Escape from a jail or prison is a desperate, risky act. It implies a reckless and defiant attitude of resistance to official restraint, which resistance carries the promise of violent consequences to those who interfere. Guards employed at such a secure facility have the direct responsibility to prevent any and all escapes, by force if necessary. Moreover, a successful escape, while it continues, represents a particular danger to public safety, and it also constitutes a direct and disturbing affront to the state’s power and ability to maintain its lawful custody. Hence, an escape will almost certainly produce an intense and focused law enforcement effort to recapture the fugitive, again by all reasonable means including force. The likelihood of such a confrontation is sufficient to constitute “an express or implied threat [of] force or violence” which may be shown under factor (b). (See People v. Mason, supra, 52 Cal.3d at pp. 955-956.)

As Boyd itself indicated, the statutory exclusion of “nonviolent” crimes, except those evidenced by “prior” felony convictions, is intended “to prevent the jury from hearing evidence of conduct which, although criminal, is not of a type which should influence a life or death decision.” (People v. Boyd, supra, 38 Cal.3d 762, 776 .) However, it is difficult to argue that one or more jailbreaks by a dangerous capital felon fall into the category of “nonviolent” conduct irrelevant to penalty.

*1262 Indeed, the threat of violence represented by the defendant’s breakout from a secure facility is particularly pertinent to an individualized determination of the appropriate penalty in a capital case. Such conduct in the defendant’s past raises the inference that, with nothing further to lose, he would pose such a risk in the future if sentenced to life without possibility of parole. Under these circumstances, it seems unlikely that the drafters and adopters of the death penalty law intended to allow consideration of such an episode only if specific indicia of violence were proved or if the escape was evidenced by a felony conviction obtained before commission of the capital crime. (See § 190.3, factor (c); People v. Balderas (1985) 41 Cal.3d 144, 203 [ 222 Cal.Rptr. 184 , 711 P.2d 480 ].)

Cases may arise in which the circumstances of an escape clearly demonstrate no threat of violence. (Cf. People v. Lopez, supra, 6 Cal.3d 45, 51-52 .) Nothing should prevent the defendant from showing that his escape, unlike most, was truly nonviolent. But in the capital sentencing context, the presumptions are otherwise in my view, particularly where the admissibility of evidence is concerned. Just as factor (b) does not require that violence actually materialized during an escape, so the statute does not contemplate subtle debates about how likely such violence may have been under the fortuitous circumstances of a particular case. By its nature, escape from a secure facility presumes a danger of confrontational violence within the purview of factor (b).

The facts of this defendant’s Oregon escape illustrate many of the factors that make escapes in general so potentially dangerous. Moreover, even when viewed in isolation, the Oregon incident demonstrates a specific threat of violence analogous to that we found sufficient in Mason .

At the time of the Oregon escape, defendant was already a fugitive from capital charges in California, and he had recently used force against a jail guard to escape from California custody while awaiting trial for the capital offense. His confinement in Oregon stemmed from charges that he had subsequently committed a further violent felony in that state. These facts give rise to a logical inference that defendant was desperate to avoid punishment for his multiple serious crimes and would use force or violence to accomplish his goal. (Cf. People v. Ewoldt (1994) 7 Cal.4th 380, 402 [ 27 Cal.Rptr.2d 646 , 867 P.2d 757 ] [prior conduct as evidence of criminal mental state on similar subsequent occasion].)

The circumstances of the escape itself also demonstrate the threat of violence. Tim Baker, a Jackson County, Oregon, sheriff’s deputy, testified that defendant and another inmate forcibly dislodged the solid-oak backrest *1263 of their cell bench from its metal backing. The men then used this four-foot piece of four-by-six-inch oak to punch a hole in a plate glass window leading to the exterior of the county jail building, which is located at an intersection “almost dead center” in the City of Medford.

Both escapees were considered dangerous, and the police departments of Medford and Ashland, Oregon were immediately alerted, as were businesses along the interstate 5 corridor between Medford and Ashland. A manhunt involving several police agencies began. Responding to a tip, Kenneth Savage, an Ashland patrol officer, observed the fugitives enter a taxicab at an Ashland gasoline station and followed as the cab proceeded onto the freeway. After backup units joined the pursuit, the police apprehended the cab by means of a “felony stop,” with guns drawn. While the driver of the cab was being “secured,” defendant tried to get out of the vehicle. Savage told him to get back in the car and keep his hands where Savage could see them. Defendant was ultimately removed from the cab and taken into custody.

Thus, the specific potential for violence was present throughout the episode. The method of escape, requiring extraordinary strength and effort, suggests a dangerous determination to gain freedom. 3 Moreover, even if no guard observed the escape itself, the jail’s central urban location made it likely that the fugitives would be seen as they crawled through the window, that law enforcement response would be immediate, and that innocent civilians might also become pawns in the escapees’ efforts to reach safety.

Of course, the authorities did react promptly, and the fugitives were soon located and captured by force. Thus here, unlike Mason, supra, there is no need to hypothesize the mere probability of a potentially dangerous confrontation between the escapee and those charged with restraining or recapturing him. Such a confrontation actually occurred when the manhunt for defendant and his partner ended with their apprehension by the police. That defendant “did not resist” when faced with overwhelming armed force hardly negates the inference that the “threat” of violence was present.

Accordingly, I am persuaded that admission of the Oregon escape evidence was proper under factor (b) of section 190.3. For this additional *1264 reason, I, like the majority, reject defendant’s contention that introduction of this evidence over his objection warrants reversal of the penalty judgment. 4

George, C. J., Chin, J., and Brown, J., concurred.

Appellant’s petition for a rehearing was denied November 13, 1996.

All subsequent statutory references are to the Penal Code unless otherwise indicated.

In People v. Lopez (1971) 6 Cal.3d 45 [ 98 Cal.Rptr. 44 , 489 P.2d 1372 ], we declined to find the crime of escape to be “inherently dangerous to human life” for purposes of the second degree felony-murder rule. (Id. at p. 52, italics added.) But as we explained in Mason , this reasoning “is not applicable to determinations under section 190.3, factor (b). Whether a felony is inherently dangerous for purposes of the second degree felony-murder rule is determined by viewing the elements of the felony in the abstract. [Citations.] In contrast, whether a particular instance of criminal activity ‘involved ... the express or implied threat to use force or violence’ (§ 190.3, factor (b)) can only be determined by looking to the facts of the particular case.” (People v. Mason, supra, 52 Cal.3d at p. 955, italics added.) Nothing in Lopez or Mason precludes the commonsense conclusion that the facts of a breakout from a secure jail or prison will most often involve the “express or implied threat” of force or violence under factor (b). Indeed, by rejecting the “not inherently dangerous” rationale of Lopez for capital sentencing purposes, Mason implicitly supports such a view.

Deputy Baker testified that the wooden backrest on the cell bench was affixed to its metal backing by lag bolts, and that it appeared the backrest had been dislodged by physical force. The backrest was then used to “batter” a hole in a window made of quarter-inch laminated safety glass, and presumably designed with the security of inmates in mind.

Defendant claims he was prejudiced by the court’s “erroneous" instruction that in order to find the criminal offense of forcible escape (see § 4532, subd. (a)), the jury must conclude defendant had obtained his freedom by “force or violence,” which could include “the application of physical force against property.” In defendant’s view, this instruction suggested, contrary to Boyd, supra, that force against property was enough to make an escape “violent” within the meaning of factor (b). No prejudicial error occurred. Whether or not the instruction correctly defined the elements of the crime of forcible escape (see People v. Lozano (1987) 192 Cal.App.3d 618, 626-628, & fn. 8 [ 237 Cal.Rptr. 612 ]; CALJIC No. 7.31), it merely specified that the jury must find all the elements of that offense before it could consider the violent aspects of defendant’s conduct under factor (b). (See People v. Boyd, supra, 38 Cal.3d 762, 778 .) No implication arose that force against property alone met factor (b)’s separate definition of actual or threatened “force or violence.” Tlie prosecutor did not argue that defendant’s destruction of property during the Oregon escape was itself aggravating “violence” which weighed in favor of the death penalty. As we have seen, defendant was clearly guilty of at least the offense of “simple” escape, committed under circumstances implying a high degree of potential danger to human beings. Moreover, the general balance of aggravating over mitigating evidence was great. Under these circumstances, it is not reasonably possible that more precise instructions about the legal effect of property damage in the Oregon escape would have affected the penalty outcome. (See People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ].)